A brief Introduction to the Kenyan constitution

The Katiba, 2014

I thought some of our readers might find a bit of basic information about the Kenyan constitution useful.  I’ll start by attempting to explain the changes to the Kenyan constitution that have occured since 1963.

Firstly, the Kenyan constitution (katiba in Kiswahili) is the body of fundamental principles according to which the country is governed. The constitution was officially published on the 6th of May 2010 and was the subject of a referendum on the 4th of August. Approximately 67% of voters said ‘yes’ to the new constitution and it became law on the 27th of August 2010.

A brief history of the Kenyan Constitution

In 1963 a constitution for Kenya was negotiated between Kenyan leaders with significant input from the British. The 1963 constitution granted the right to vote to all Kenyans over the age of 18 and provided for a fully elected parliament for the first time in Kenya’s history. It also laid out a system of government for the country. Executive power was to rest in a cabinet drawn from parliament and headed by a prime minister. However, the cabinet could be removed by a vote of no confidence from the legislature. Legislative power was divided between two houses, the National Assembly and the Senate. The Senate represented the regions. The 1963 constitution also sought to establish an independent judiciary and protect the civil and political rights of all Kenyans.

However, this constitution began to be dismantled almost immediately when Jomo Kenyatta changed the system of government from a parliamentary to a presidential one. The president was now both Head of State and Head of Government, concentrating power in one individual. Regional government and the second chamber of parliament were also abolished creating a highly centralised government that was not subject to many checks or balances. In June 1982 the National Assembly, under President Daniel Arap Moi who had succeeded Kenyatta in 1978, amended the constitution and declared Kenya a one party state. In 1988 a number of previous changes, including the erosion of judicial independence, were collected together and the constitution was amended. By this time the constitution bore very little resemblance to the 1963 document.

During the early 1990s some of the changes began to be reversed. Judicial independence was officially restored in 1990 and in 1991 Section 2A reintroduced multiparty politics to Kenya. However, the preceding years had challenged people’s faith in the political system and the constitution. Many people felt that in order to restore faith in government and be certain that full rights were restored it was necessary to create a new constitution.

The Katiba 2014

In 2000 the Constitution of Kenya Review Commission (CKRC) was set up by President Moi under the chairmanship of Professor Yash Pal Ghai. The commission put forward its first suggested constitution in 2004; this has become known as the Bomas Draft. The government did not accept this draft and instead put forward the Wako Draft the following year. This was rejected by a referendum the same year. The process stalled at this point but was given renewed impetus following the post-election violence of 2007. In2008 a Committee of Experts on Constitutional Reform was set up. They proposed a constitution in November 2009; this document was revised further and eventually became the constitution in 2010.

 

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